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Gonzalez v. United States

United States Court of Appeals, Fifth Circuit

March 22, 2017

TERESA GONZALEZ, Plaintiff-Appellant

         Appeal from the United States District Court for the Southern District of Mississippi

          Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, Circuit Judge:

         Teresa Gonzalez was injured while riding her bicycle over a ramp at De Soto National Forest. She sued various United States officials under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, alleging they failed to inspect and maintain the bicycle trails, and failed to warn her of the hazard. The United States moved to dismiss, arguing that the FTCA's "discretionary function exception" barred Gonzalez's claims. The district court granted the motion. We AFFIRM.


         On July 28, 2012, Teresa Gonzalez and Robert Reville, Jr., went to the De Soto National Forest to ride their bicycles at the Bethel Bicycle Trails, which included the Couch Loop Trail. Before they began riding, Gonzalez did not look at the bulletin board at the park's entrance, which contained a sign stating that the Couch Loop Trail was closed. They nevertheless embarked on the Couch Loop Trail. At some point, they took an "alternate route" to the left of the main trail that led to obstacles including a teeter-totter and a ramp. Neither attempted to ride over the teeter-totter, but both decided to ride over the ramp. Gonzalez had never jumped off a ramp before, and when she tried to do so, she fell off and suffered serious injuries.

         Gonzalez assumed that the ramp was part of the trail and built by the Forest Service. In fact, the ramp was built illegally by Gulf Coast Bicycle Club members, without the knowledge of the United States Forest Service ("USFS"). The USFS employees were not aware of the ramp's existence before Gonzalez's accident. They were, however, aware of an unauthorized bridge further down the trail, which is why the Couch Loop Trail was closed on the day of Gonzalez's accident.[1]

         USFS recreational technician Charles Grice had posted a sign at the trailhead bulletin board that stated the trail was closed, and also flagged the bridge area with boards, signs, and ribbons. The sign at the trailhead bulletin board stated: "Couch Trail CLOSED, " and in smaller type, "Bridge Out." The sign was on an 8 ½" by 11" sheet of paper. Gonzalez claims that neither she nor Reville saw any signs, and that she would have obeyed any warning sign she saw.

         De Soto National Forest is about 382, 000 acres. In 2012, Ronald Smith was the De Soto National Forest District Ranger, the highest ranking officer of a district. Two technicians were responsible for maintaining and inspecting the Bethel Bicycle Trails, full-time technician Charles Grice, and part-time technician, Anthony Bond. Grice testified that inspection and maintenance of the trails included identifying hazards, such as trees, and performing repair work. He spot-checked the trail and checked it when people called. If Grice found an unauthorized structure, he reported it to the ranger. He stated that he and Bond "bush hog the trail pretty much every year, " which includes clearing and cleaning the trail. Grice did not know whether he had bush hogged the teeter-totter and ramp area in 2012. The last time Grice remembered inspecting the Couch Loop Trail before Gonzalez's accident was when he was inspecting a trail contractor's work, however he could not remember when that was. Other than checking for unsafe structures or trees and bush hogging, there are no other scheduled inspections of the trail. Since January 2012, Grice was also responsible for posting any warning signs at the trailhead. Grice stated that no one instructed him about the placement of trail closure notices, and that "[w]e just put them on the bulletin board at the trailhead areas." Grice and Bond were not allowed to post warning signs or close a trail without Ranger Smith's authority.

         A number of laws, regulations and policies affect the USFS, including the following that Gonzalez highlights in this appeal: (1) The Forest Service Manual - FSM-2300 Recreational, Wilderness, and Related Resource Management ("the Manual"); (2) The Forest Service Handbook - FSH 2309.18 - Trails Management Handbook ("the Handbook"); and (3) the Forest Service-EM7100-15 Sign and Poster Guidelines for the Forest Service ("Sign and Poster Guidelines").

          Gonzalez filed a complaint against the United States on February 21, 2014, asserting jurisdiction under 28 U.S.C. § 1346(B)(1). She advanced several negligence theories, essentially alleging that the United States failed to keep its premises safe, failed to perform inspections, and failed to warn of a dangerous condition. The United States moved to dismiss for lack of subject matter jurisdiction, arguing that the discretionary function exception to the FTCA's waiver of sovereign immunity applied. It alternatively moved for summary judgment "because no USFS employee engaged in any negligent act or omission for which the United States may be held liable to the Plaintiff under the FTCA." The district court granted the motion to dismiss based on the FTCA discretionary functions exception, not reaching the government's alternative argument. Gonzalez appealed.


         "We review the district court's dismissal for lack of subject-matter jurisdiction over [a plaintiff's] FTCA claim de novo."[2] "Lack of subject-matter jurisdiction may be found in the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court's resolution of the disputed facts."[3] The district court here based its conclusion on the complaint and undisputed facts.[4]


         The United States enjoys sovereign immunity from suit, meaning it cannot be sued without consent.[5] "The FTCA is recognized as providing a waiver of sovereign immunity and provides the sole basis of recovery for tort claims against the United States."[6] This waiver, however, "is subject to several exceptions."[7] The exception relevant here is the "discretionary function exception, "[8] which "preserves the federal government's immunity . . . when an employee's acts involve the exercise of judgment or choice."[9] The exception is found in 28 U.S.C. § 2680(a):

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

         The Supreme Court has explained, "[t]he exception covers only acts that are discretionary in nature, acts that 'involv[e] an element of judgment or choice, ' [] and 'it is the nature of the conduct, rather than the status of the actor' that governs whether the exception applies."[10] "The basis for the discretionary function exception was Congress' desire to 'prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'"[11]

         A two-prong test determines whether the exception applies: (1) "the conduct must be a 'matter of choice for the acting employee[;]'"[12] and (2) the "judgment [must be] of the kind that the discretionary function exception was designed to shield."[13] Both prongs must be met for the exception to apply.[14]With respect to the first prong, "[i]f a statute, regulation, or policy leaves it to a federal agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary."[15] On the contrary, "[t]he requirement of judgment or choice is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, ' because 'the employee has no rightful option but to adhere to the directive.'"[16] Regarding the second prong, the court "consider[s] whether the actions taken are 'susceptible to policy analysis.'"[17] "[T]he proper inquiry . . . is not whether [the official] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was 'susceptible to policy analysis.'"[18] In performing the two-prong test, "the question of whether the government was negligent is irrelevant."[19]


         The FTCA's discretionary function exception bars Gonzalez's claims. The district court categorized Gonzalez's claims into two groups: (1) the alleged failures to inspect and maintain the trails, and (2) the alleged failures to warn. We adopt the same useful organization.

         Gonzalez alleges the government employees failed to meet a number of provisions from the Manual and Handbook. She argues that such provisions prescribe a course of action and contends that "routine property maintenance decisions are not susceptible to the kind of policy analysis shielded by the discretionary function [exception]." Gonzalez compares the government's actions to those of a business operator who makes decisions about premises safety. The Government responds that Ranger Smith and the other USFS officials had discretion in maintaining and inspecting their trails. The Government argues that no specific law or policy proscribed how employees should inspect and maintain the trails, and that the Manual and Handbook offer "general guidance." The Government urges, "[t]he determining factor is whether the challenged actions are 'grounded in the policy of the regulatory regime, '" and concludes that "trail inspection and maintenance are part of the essence of the regulatory regime set forth in the Manual, the Handbook, and the other applicable regulations." The Government asserts that the USFS balanced resources as per USFS policy, and followed the recommendations for maintaining bicycle trails.[20]

         In order to determine whether an official's conduct was discretionary, we must first define that conduct.[21] Gonzalez generally suggests that the conduct at issue is some version of "failing to inspect the trails as required." The Government, in turn, describes Gonzalez as arguing "that USFS failed to perform required inspections and maintenance of the Bethel Bicycle Trails" and "further . . . that the National Quality Standards for Trails mandate hazard-free trails." To different extents, each of the above framings assumes that there were clearly prescribed requirements-an inquiry for the first prong of the discretionary function test. Moreover, Gonzalez at times suggests that Grice and Bond failed altogether to inspect the trails-but the record belies this assertion.

         The Eleventh Circuit in Autery v. United States confronted a similar gateway framing issue. In that case, after a black locust tree in the Great Smokey Mountain National Park fell on a car, the injured passenger and estate of a killed passenger brought an FTCA claim against the United States.[22] In its discretionary function analysis, "[t]he government argue[d] that the conduct to be evaluated [was] 'the Park Service's decision to establish and implement a tree inspection program. Plaintiffs, on the other hand, contend[ed] that 'the conduct at issue [was] the park's failure to carry out the mandates of its then existing policy of identifying and eliminating known hazardous trees.'"[23] The Autery court rejected both descriptions.[24] It explained that "[t]he tree inspection program was designed to identify which trees were hazardous. Whether park personnel had discretion in executing that plan is the relevant issue."[25] "[T]he relevant inquiry here, " the Autery Court concluded, "is whether controlling statutes, regulations and administrative policies mandated that the Park Service inspect for hazardous trees in a specific manner."[26] Similarly, the relevant inquiry in the present case is whether the controlling policies mandated the USFS to inspect and maintain the trails in a specific manner.

         We find that they did not. Beginning with the first prong of the discretionary function exception test, the relevant Manual and Handbook provisions contemplate an element of choice as to how USFS employees inspect and maintain the trails. For example, Paragraph 2353.12 in the Manual instructs to "[m]anage each trail to meet the [trail management objectives] identified for that trail, based on applicable land management plan direction, travel management decisions, trail-specific decisions, and other related direction, as well as management priorities and available resources." This language contains the direction to "meet" the identified objectives, but gives room for choice based on the evaluation of various factors. Moreover, although the objectives at 2353.02 list specific goals, they do not prescribe a certain course employees must take to reach those goals. In this way, the "provisions . . . contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow."[27]

         The Handbook, too, contemplates that employees have some discretion in maintaining the trails. For example, the exhibit in Chapter 10, Paragraph 18, for "trail operation and maintenance considerations" states that the considerations are "general guidelines for developing trail prescriptions and managing, operating, and maintaining National Forest System trails."[28] It further states that "[t]he considerations are a starting point and likely will need to be adapted to reflect local financial capability and other circumstances."[29] General guidelines for maintaining a trail encompass "acts that are discretionary in nature, acts that 'involv[e] an element of judgment or choice.'"[30] Here, because the "policy leaves it to a federal agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary."[31]

         Gonzalez emphasizes one of the critical "National Quality Standards for Trails" in the Handbook that states: "hazards do not exist on or along the trail." Gonzalez asserts, "[i]t is inconceivable that a Critical National Quality Standard to inspect the trails to ensure that hazards do not exist and to 'prevent immediate and permanent injury to persons or property' is a duty left up to the choice of low level Forestry Service personnel." In response, the Government points to the footnote associated with the Critical National Quality Standards, which states "[i]f it cannot be met, action must be taken as soon as practicable to correct or mitigate the problem." This language contemplates that the standard may not be met, which cuts against Gonzalez's claim that the standard represents a mandatory prescription. Moreover, even if the standard that "hazards do not exist on or along the trail" is mandatory, the standard does not dictate how officials must meet that standard-which is what the challenged conduct concerns.

         Gonzalez contends, "[i]nspecting the bicycle trail does not mean bush hogging some portion of the trail with easy access to a tractor on occasion." But even setting aside Grice's testimony to the contrary, Gonzalez cites to no provision prohibiting this understanding, nor prescribing a different understanding, of how the trails should be inspected. That the policies leave open the question of how to inspect the trails is evidence of choice. Gonzalez also argues that the officials were not familiar with the policies, but in doing so shifts the focus away from the discretionary function test and toward the merits of her negligence claims. Indeed, Grice testified he did not know what the National Quality Standards for trails were, and that he never read the "Trails Management Handbook, Trail Planning" document.[32] Gonzalez emphasizes that Bond could not remember ever inspecting the area of the Couch Loop Trail where the accident occurred, nor did he recall seeing the regulations. Gonzalez also points out that Ranger Smith "had never read the Forestry Service Regulations." Gonzalez asserts, "[t]here is no 'room for choice' if you have no idea what the standards are for performing maintenance and inspections to begin with." While the officials' lack of familiarity with the policies may be strong evidence of a breached duty, such evidence does not affect the inquiry at hand: whether the challenged actions contained an element of judgment. Gonzalez's arguments in this respect better inform the merits of her underlying claims, rather than whether the discretionary function exception applies. Based on the applicable policies, "there was 'room for choice' in making the allegedly negligent decision"[33] to not inspect and maintain the trails in a certain way. At most, the USFS officials abused their discretion, but as the Court in Katrina Canal Breaches reminds, such "abuse [is] explicitly immunized by the [discretionary function exception]."[34]

         The challenged conduct also meets the second prong of the discretionary function exception test, as the manner in which the USFS officials inspected and maintained the trails was susceptible to policy considerations. Gonzalez asserts that, "[t]here should be little balance when it comes to the safety of the patrons versus the natural environment under the circumstances of this case. Certainly in this instance, removing the hazards and inspecting for additional hazards is reasonable and inexpensive." However, this argument concerns whether the officials best balanced the policy considerations, when the inquiry is whether the challenged actions were susceptible to policy considerations. Indeed, the purpose of the discretionary function exception is "to prevent judicial second-guessing."[35]

         In Gibson v. United States, this Court held that the discretionary function exception was not met, because the Federal Emergency Management Agency's ("FEMA") conduct in how to provide customers access to their trailers was not susceptible to policy analysis.[36] In Gibson, the plaintiff "was at a FEMA storage site . . . inspecting trailers that were to be sold at auction, " when he was injured while trying to exit one.[37] Gibson brought suit under the FTCA, [38] alleging a number of claims related to FEMA's policies regarding access to the trailers.[39] The government argued the discretionary function exception applied.[40] Bypassing a determination on the first prong of the test, this Court held "that FEMA's decision about how customers would enter and exit the trailers was not the type of judgment the discretionary function exception was designed to protect."[41] The Court compared FEMA's trailer operation to that of a commercial business, [42] and found that decisions regarding trailer access concerned "'a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to . . . FEMA's[] mission as it is possible to get.'"[43]

         Gonzalez cites extensively to Gibson, while the Government attempts to distinguish it by arguing that in Gibson, the United States was acting as a commercial business, but in the present case it is operating wilderness. The Government's suggestion that "wilderness cases" are distinct has merit. As the Gibson Court pointed out, "[r]ather differently, when the Government acts as landowner of wilderness, certain kinds of maintenance decisions have been found to contain multiple policy considerations."[44] The Gibson Court cited to Theriot v. United States, [45] which concerned how the United States Army Corps of Engineers "was to notify the public of the existence of a sill, " and Hix v. U.S. Army Corps. of Engineers, [46] which concerned how the government was to "replace warning signs near jetties in Galveston."[47] Unlike those decisions, which concerned public safety (Hix), dangerous objects, vessel traffic, and economics (Theriot), among others, in Gibson, "the Government operated as a commercial business and welcomed customers to its site as if it were managing a trailer showroom."[48]

         Here, the government acts more like the manager of a wilderness area than the operator of a commercial business. Decisions about how to maintain bicycle trails running through 382, 000 acres of land with only two recreation technicians seem to invite, if not require, "safety, financial, and other feasibility concerns."[49] Such decisions implicate resource allocation, wilderness considerations, and public safety; in other words, they are "administrative decisions grounded in social, economic, and political policy."[50]

         Gaubert teaches that "[f]or a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime."[51] The challenged actions here are grounded in USFS policy. Paragraph 2353.03 of the Manual states, for example: "Emphasize long-term cost effectiveness and need when developing or rehabilitating trails, " and "Provide a trail system that is environmentally, socially, and financially sustainable." The decisions about how to inspect and maintain the bicycle trails are susceptible to policy considerations so as to satisfy the second prong of the discretionary function exception test.

         Gonzalez's failure to warn claims are also barred by the discretionary function exception. Gonzalez argues that the government had a duty to warn her about the ramp, and that, "[t]he Forestry Service Regulation do not give a choice on how to mark a trail." Gonzalez points to a bevy of provisions describing sign standards, and ultimately argues, "the 8 ½ x 11 sheet of copy paper with small black letters posted amongst other cluttered papers was not a discretionary option for those in charge of maintenance and inspection." Gonzalez avers the government's "failure to adequately warn and notify [Gonzalez] of the trail closure involves considerations of safety, not public policy." The Government responds by pointing out that the Couch Loop Trail was closed due to the bridge, not the ramp. The Government insists that Grice's notice on the trailhead followed Guidelines recommendations, and reiterates the district court's conclusion that "the USFS could not possibly warn of a hazard it did not create and of which it had no knowledge." The Government further ...

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